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Pen&Internet
SOFTWARE LICENSE AND SERVICE AGREEMENT |
Dated September 10, 2002
The Software applet you seek to use for sending handwritten email is
licensed only on the condition that you ("YOU" or
"Licensee") agree with Pen&Internet, LLC ("P&I") to
be legally bound by this Software License and Service Agreement
("Agreement"), which sets forth the terms and conditions upon which
the parties agree as they pertain to the licensing of riteMail software applet
and the related riteMail handwritten email service.
PLEASE CAREFULLY READ THE TERMS OF THIS AGREEMENT.
IF YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT,
CLICK ON THE "I ACCEPT" BUTTON AT THE BOTTOM OF THIS PAGE, AT
WHICH TIME YOU WILL BE GRANTED A LICENSE TO USE THE SOFTWARE APPLET AND SERVICE
FOR SENDING HANDWRITTEN EMAIL.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE
"I ACCEPT" BUTTON AT THE BOTTOM OF THIS PAGE, AT WHICH POINT THE
SERVICE MAY NOT BE USED BY YOU.
Please print a copy of this Agreement for future reference.
In consideration for use of the Software applet and Service, Licensee hereby
agrees to the following terms and conditions:
1. DEFINITIONS. The following definitions shall apply to this
Agreement:
"Software" shall mean a Software applet of the object code,
client version of P&I's riteMail software.
"Service" shall mean P&I's riteMail mobile handwritten
email service,
which is provided in connection with its Software.
2. GRANT OF LICENSE. P&I hereby grants the Licensee a
non-exclusive, non-transferable, non-sublicensable, revocable license
("License") to use a single copy of the Software solely for Licensee's
personal purposes in accordance with the terms of this Agreement. The Software
is licensed, and not sold, to the Licensee.
3. RESTRICTIONS. Licensee shall not, and shall not permit any third
party to, (i) use the Software for any commercial use, including without
limitation third party training, time-sharing, rental, service bureau use, or
any other use that violates the terms of this Agreement; (ii) disassemble,
reverse compile, reverse engineer, make derivative works from or modify the
Software or take any action in order to derive a source code equivalent of the
Software; (iii) incorporate, bundle or pre-load the Software into any computing
device manufactured by you, or for you; (iv) copy all or any part of the
Software, (v) rent, sell, lease, sublicense or transfer the Software; or (vi)
use the Software while engaging in any physical activity that requires constant
attention.
Violation of this Section 3 will immediately terminate this Agreement.
4. TITLE AND PROPRIETARY INFORMATION. Except for the limited license
granted herein, the Software and all related documentation and materials, and
all intellectual property rights contained therein, are and shall remain the
sole and exclusive property of P&I.
5. MAINTENANCE AND SUPPORT. During the term of this Agreement, P&I
shall use its reasonable efforts to provide technical support of the Software
according to its support policies. Such technical support shall be available by
email communication and shall be available from 8 a.m. to 5 p.m. (Pacific
Standard Time) on working days, subject to further restrictions, which may be
set forth in its support policies.
6. SERVICE. Unless this Agreement is earlier terminated or your rights
are
otherwise suspended pursuant to Section 13, for a period of one (1) year
from the date of this Agreement, P&I shall provide you with access to and
you may use the Service. These access and use rights may be extended beyond the
initial thirty-day term upon the mutual written consent of P&I and you. To
use the Service you must obtain access to the World Wide Web, and pay any
service
fees associated with such access and in addition, to use the Service, you must
obtain a regular email account and pay any service fees associated with such
account. You must also obtain all additional equipment and software necessary to
make connections to the World Wide Web and/or email at your own expense.
7. REGISTERING FOR THE SERVICE. In consideration of your use of the
Service, you agree to: (i) provide to P&I true, accurate, current and
complete information about you (the "Registration Data"); and
(ii) maintain and promptly update the Registration Data to ensure that it is
true, accurate, current and complete. If you provide any information that is
untrue, inaccurate, not current or incomplete, or if P&I has reason to
suspect that such information is untrue, inaccurate, not current or incomplete,
P&I may suspend or terminate your account and refuse you any and all current
or future use of the Service (or any portion thereof). You acknowledge and agree
that the loss of any and all current or future use of the Service may
temporarily or permanently deprive you of access to information you have created
or transferred using the Service. Unless
explicitly stated otherwise in additional rules, terms and conditions that
broaden access to certain areas of the Service, you must be at least 18 years
old to access the Service. You will receive a User Name and Password upon
completing the registration process. You are responsible for any and all
activities that occur under your User Name and Password, and you are responsible
for maintaining the confidentiality of your User Name and Password. You
agree to (i) immediately notify P&I of any unauthorized use of your User
Name and Password or any other breach of security of the Service, and (ii)
ensure that you exit from the Service at the end of each use of the Service. You
agree that P&I shall not be liable for any loss or damage arising from your
failure to comply with the provisions of this Section.
8. USE OF THE SERVICE / MEMBER CONDUCT. You are solely responsible for
all information created and transmitted or received by you in the course of your
use of the Service, including, but not limited to, your updates to other
parties' information obtained by you in the course of your use of the Service.
P&I does not control, edit or monitor information transmitted or stored in
the Service and, as such, does not warrant the accuracy, integrity or quality of
such information. You understand that by using the Service, you may be exposed
to information that is offensive, indecent or objectionable. You agree that
under no circumstances will P&I be liable in any way for any such
information, including, but not limited to, for any errors or omissions in any
information, or for any loss or damage of any kind incurred as a result of the
use of any information, emailed or
otherwise transmitted via the Service. You agree to comply with all and any
local, national, and international laws, rules and regulations
("Laws") regarding online
conduct and the transmission of information on the Internet. Specifically, you
agree to comply with all Laws regarding the transmission of technical data
exported from the United States or in the country in which you reside. You agree
to not use the Service to: (i) upload, post, or otherwise transmit any
information that is unlawful, threatening, harmful, abusive, harassing,
defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful,
or racially, ethnically or otherwise objectionable; (ii) harm or harass any
person or entity in any way; (iii) impersonate any person or entity, including,
but not limited to, P&I, a P&I agent or employee, forum leader, guide or
host, or falsely state or otherwise misrepresent
your affiliation with any person or entity; (iv) forge or otherwise manipulate
any identifying information in order to disguise the origin of any information
transmitted through, or stored in the Service; (v) upload, post, solicit or
otherwise transmit any information that you do not have a right to transmit
under any Law or under any contractual or fiduciary relationships (such as
insider, proprietary and confidential information learned or disclosed as part
of employment relationships or under nondisclosure agreements); (vi) upload,
post,
or otherwise transmit any information that infringes any party's intellectual
property rights, including, but not limited to patents, trademarks, trade
secrets, and copyrights; (vii) upload, post, or otherwise transmit any
unsolicited or unauthorized advertising, promotional materials, "junk
mail," "spam," "chain letters,"
"pyramid schemes," or any other form of solicitation; (viii) upload,
post, or otherwise transmit any material that contains any computer code, files
or programs designed to interrupt, destroy or limit the functionality of any
computer software, hardware or telecommunications equipment, including, but not
limited to software viruses, "warms", "bombs", etc.; (ix)
interfere with or disrupt the Service or servers or networks utilized in the
operation of the Service, or disobey
any requirements, procedures, policies or regulations of networks utilized in
the operation of the Service; (x) intentionally or unintentionally violate
any applicable Law; (xi) collect, store or expose personal data about other
users and/or content posted or otherwise transmitted via the Service by other
users without their express permission.
9. MONITORING AND REMOVAL OF INFORMATION. You acknowledge that P&I
does not pre-screen information during the regular operation of the
Service, but that P&I and its designees shall have the right (but not
the obligation), in their sole discretion, to refuse transmission of any
information that Licensee seeks to send or receive via the Service. Without
limiting the foregoing, P&I and its designees shall have the right to refuse
or remove any information that violates this Agreement or is otherwise
objectionable, in P&I's sole judgment, or unlawful. You agree that you must
evaluate, and bear all risks and costs associated with the use of any
information obtained through the Service, including any reliance
on the accuracy, completeness, or usefulness of such information. P&I and
you agree that email transmitted via the Service is private correspondence
between the sender and the recipient(s). P&I will not monitor, edit, or
disclose the contents of Licensee's private communications, except in the
following circumstances: (i) if required to do so by applicable Laws; (ii) to
enforce the Agreement and any applicable additional rules, terms and conditions;
(iii) to respond to claims that the communications or information violates the
rights of third-parties; or (iv) to protect the rights, property, or personal
safety of P&I, its employees, agents, other licensees and the public. With
respect to any information you elect to
submit for inclusion in publicly accessible areas of the Service, such as
showcases, interactive galleries, or artrooms, you grant P&I a -exclusive,
worldwide, royalty free license to reproduce, copy, modify, create derivative
works from, distribute, and publish such information within the Service. You
understand that technical processing and transmission of information via the
Service, including information posted by you, may involve (i) transmissions over
various networks; and (ii) changes to conform and adapt to technical
requirements of connecting networks or devices. P&I disclaims all
responsibility for faulty network transmission, interception of communications
outside of the Service, and any links or other external resources accessible via
the Service. P&I further disclaims all responsibility for interruptions or
suspensions of the Service (in a manner applicable to all licensees) for reasons
including, but not limited to,
legal, safety, business or technical considerations, including, but not limited
to, interruption of any communications through the Internet or other
interruptions beyond P&I's control.
10. INDEMNIFICATION. You agree to indemnify, defend and hold P&I,
its
employees, members, managers, officers, subsidiaries, affiliates, agents or
other partners, harmless from any claims, liabilities, (including third party
claims and liabilities), demands, damages, losses, costs and expenses,
including reasonable attorneys' fees, due to or arising out of or relating to
your use of the Software or the
Service, including, but not limited to (i) any breach by you of this Agreement
and (ii) any information or other content submitted, posted to or transmitted
through the Service to or from you.
11. WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY.
IN ADDITION TO OTHER DISCLAIMERS SET FORTH HEREIN, P&I DISCLAIMS ALL
WARRANTIES WITH RESPECT TO THE SOFTWARE AND THE SERVICE. THE SOFTWARE AND THE
SERVICE ARE PROVIDED "AS IS" AND WITHOUT WARRANTY, EXPRESS OR IMPLIED.
P&I SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL P&I BE LIABLE FOR ANY
DIRECT, CONSEQUENTIAL, RELIANCE, INCIDENTAL, SPECIAL, DIRECT OR INDIRECT DAMAGES
SUFFERED BY LICENSEE (WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE), INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST
SAVINGS, LOSS OF CUSTOMERS, LOSS OF BUSINESS INFORMATION, LOSS OF USE OF ANY
SOFTWARE, DATA, OR E-MAILS, COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, SERVICES
OR TECHNOLOGY, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER E-MAILS OR
DATA, INCLUDING INTERRUPTION OF THE SERVICE, SOFTWARE OR COMPUTER FAILURE,
BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE
INTERNET OR OTHER MEANS, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR
TRANSMISSIONS OR DATA, ANY PERSONAL INJURY OR INJURY TO PROPERTY, OR ANY OTHER
CAUSE, EVEN IF P&I IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF
THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Licensee agrees that regardless of any statute or law to the contrary, any
claim or cause of action arising from this Agreement, the Software or the
Service must be filed within one (1) year after such claim or cause of action
arises. To the extent that Licensee may be entitled to any recovery, such
recovery shall be limited to the fees collected by P&I from such Licensee
under this Agreement.
12.TERM; TERMINATION.
(i) Unless earlier terminated pursuant to the terms of this Agreement, the
term of this Agreement shall commence upon your submission of the registration
form and the subsequent activation of the Service and will terminate
automatically without notice from P&I to Licensee one (1) year from
the Service activation date.
(ii) This Agreement will also terminate automatically upon notice from P&I
to Licensee if (a) you fail to comply with any term(s) of this License;
(b) you attempt to transfer any or all of your rights under this Agreement
to another person or entity; or (c) P&I sends you a new software license
agreement, which conditions your continued use of the Software and the Service
upon acceptance of such new agreement.
(iii) Termination of this Agreement shall be without prejudice to any rights
or liabilities accrued at the date of the termination. Upon effectiveness of the
termination, all rights and licenses of Licensee to use the Software and the
Service under this Agreement shall terminate. Upon termination of this
Agreement, you shall cease all use of the Software and Service and destroy all
copies of the Software and all associated documentation in your possession or
control.
(iv) The following Sections shall survive termination: 10, 11 and 12.
(v) In addition to the foregoing, P&I may, in its sole discretion,
temporarily
suspend or terminate your User Name, Password, and your use of the Service, and
remove and discard any information posted within the Service on your behalf, for
any reason, including, without limitation, for lack of use or if P&I
reasonably believes that you have violated or acted inconsistently with the
terms and conditions of this Agreement and/or any additional rules, terms and
conditions that have been made available to you on P&I's web site in
conjunction with this Agreement. P&I may also, in its sole discretion and at
any time, discontinue providing the Service, or any portion thereof, with or
without notice, whether or not the Software license remains valid. You agree
that any termination of your access to the Service under any provision of this
Agreement may be effected without prior notice, and acknowledge and agree that
P&I may immediately deactivate or delete your account and all related
information in your
account and/or bar any further access to such files or the Service. Further, you
agree that P&I shall not be liable to you or any third-party for any
termination of your access to the Service.
13. EXPORT CONTROL. Licensee shall comply with all applicable export
laws, restrictions and regulations of the United States or the applicable
foreign agency or authority. Licensee will not export or re-export or allow the
export or re-export the Software, or any product, technology, or information it
obtains or learns of pursuant to this Agreement in violation of any such laws,
restrictions or regulations.
14. ASSIGNMENTS AND TRANSFERS. This Agreement may not be assigned,
sublicensed, re-marketed or otherwise transferred, voluntarily or otherwise,
without the prior written approval of P&I.
15. SEVERABILITY / GOVERNING LAW / ENTIRE AGREEMENT. Should any
provision of this Agreement be deemed by a court of competent jurisdiction to be
invalid, ineffective, unenforceable, or unlawful, under present or future laws,
the remainder of the provisions shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. This Agreement is governed by
the laws of the State of Colorado, without regard to its conflicts of laws
provisions or the United Nations Convention on Contracts for the International
Sale of Goods. Licensee agrees that venue for any dispute arising hereunder
shall be proper in the applicable state or federal court sitting in Denver,
Colorado. Licensee acknowledges it has read this Agreement and agrees that it is
the complete and exclusive statement of the agreement between the parties, and
that this
Agreement supersedes all prior proposals and understandings, oral and written,
relating to the subject matter of this Agreement. This Agreement shall not be
modified or rescinded except in a written instrument signed by both parties. The
terms and conditions of any present or future documents submitted by Licensee
which conflict with, or in any way purport to amend this Agreement, are
specifically objected to by P&I and shall be of no force or effect.
16. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with
RESTRICTED RIGHTS. The use, duplication, or disclosure by the Government is
subject to restrictions as set forth in subdivision
(c)(1)(ii) of The Rights in Technical Data and Computer Software clause at
52.227-7013.
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